Bad River Band calls Line 5 court ruling a “positive step,” and other news

In this blog:

  • Bad River Band: Court ruling in Enbridge Line 5 trespass case a “positive step”
  • Nez Perce defendants get court win upholding off-Reservation Treaty rights to fish
  • Report: Former Interior Secretary Zinke lied about his involvement to undermine Tribal casino plans

Bad River Band: Court ruling in Enbridge Line 5 trespass case a “positive step”

The existing Line 5 runs through the Bad River Reservation.

The Bad River Band of Lake Superior Chippewa got a significant victory in the U.S. District Court for the Western District of Wisconsin, but its significance has been disputed.

A judge ruled that Enbridge Energy and its Line 5 pipeline had trespassed on Reservation lands and unjustly enriched itself since 2013. He ordered financial compensation to Bad River. However, the ruling stopped short of granting the Band’s request that Enbridge immediately cease pipeline operations across its lands.

Is it “a significant win” if Enbridge is allowed to continue operations?

The Band River Band issued the following statement, according to Wisconsin Public Radio:

Bad River Tribal Chairman Mike Wiggins, Jr. said the ruling makes clear that Enbridge is not above the law, calling it a positive step for protecting the tribe’s water resources and members.

“We’ve indicated from the get go that this is a water resources issue and protecting our watershed home for the preservation of all people, for our tribal members to have a home forever,” Wiggins said. “Protecting the watershed home is of upmost importance. Enbridge activities and their proposed reroute are in very sensitive areas where surface waters and subsurface groundwater interact. So, the current reroute as it’s proposed is very, very problematic. It’s in the tribe’s hydrology.”

Wiggins said he will consult with the tribe’s attorneys and tribal council on next steps in the case. He said it’s “worth fighting to the end for” protection of the Bad River watershed as part of the tribe’s sovereign responsibility to ensure their rights to hunt, fish and gather under treaty with the federal government.

Nez Perce defendants get court win upholding their off-Reservation Treaty rights

The Oregon Court of Appeals has overturned the convictions of two members of the Nez Perce Tribe who had been convicted of “unlawfully taking food fish with prohibited fishing gear.” (They were using gillnets to catch Chinook salmon on the Columbia River.)

The court wrote: “Under Article III of the Nez Perce Treaty of 1855, members of the Nez Perce Tribe have a reserved right to fish at ‘all usual and accustomed places’ without restriction by the state, unless the state proves that such restriction is necessary for the conservation of fish.”

On appeal, defendants argued “the state presented no evidence that the Nez Perce Tribe’s own conservation measures were insufficient for conservation of the salmon or that the state’s conservation goal served by the gillnet restriction could not be accomplished by further regulating nontreaty fishers.”

The court agreed, writing that state didn’t show that “the gillnet regulation and its application to treaty fishers, “is necessary for the conservation of Columbia River salmon populations…”

Further, the Court grounded its decision in Article VI of the U.S. Constitution, which states that treaties are the supreme law of the land.

“The fishing rights guaranteed under the Nez Perce Treaty of 1855 are ‘part of the supreme law of
the land which the states and their officials are bound to observe,’” the court wrote.

Report: Former Cabinet sectary lied to investigators about his effort to undermine Tribal casino plan

Former U.S. Department of Interior Secretary Ryan Zinke and his chief of staff weren’t truthful with investigators regarding their involvement in blocking a Tribal casino proposal, according to a report issued last month by the Office of the Inspector General.

The report says Zinke and his chief of staff made statements to investigators “with the overall intent to mislead them.”

The backstory to the investigation is a battle for casino territory.

In 2014, Massachusetts awarded a license for a resort-casino development in Springfield, located just 5 miles north of the Connecticut border. (The report doesn’t name the casino, but it was the MGM Springfield.)

In 2015, two Tribes with long histories of operating casinos in Connecticut agreed to jointly build and operate a casino on nontribal lands in the state, just 13 miles south of the proposed MGM casino. The state of Connecticut was on board, as it would share in the revenues.

Those involved with the MGM Casino lobbied the Department of Interior to reject the Connecticut casino.

The report goes to great lengths to document lobbying efforts, interviewing key players, including a U.S. Senator from Nevada, agency staff, lobbyists, and Zinke.

The report concludes that Zinke didn’t comply with his Duty of Candor when interviewed by investigators, making statements that were “inaccurate and incomplete.”

Zinke repeatedly denied having conversations about the Connecticut casino application “with anyone outside the agency,” including the Senator or industry lobbyists, the report said.

Investigators found many examples where Zinke had conversations about the casino application with outside interests. Even the Senator told investigators he had asked Zinke directly not to approve the project.

Zinke told investigators he based his decision solely on advice from Department of Interior staff. Interviews with staff contradicted his statement.

The Office of Inspector General referred Zinke’s case to the U.S. Department of Justice in 2018. It declined prosecution in the summer of 2021.

Politico reports that Zinke tried to delay the release of the Office of Inspector General’s report, as he is running for a Montana Congressional seat. The report was released Aug. 24.

The new Connecticut casino never got built, Connecticut Public Radio reported. The Tribes cited the need “to focus on their two existing casinos that have been hit hard by the coronavirus pandemic.”

The report makes no mention of President Trump, who has a long history of opposing Indian casinos.

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